REBECCA F. DOHERTY, District Judge.
Currently pending before the Court is a motion for summary judgment [Doc. 32], filed by defendant Robert A. McDonald, Secretary of the United States Department of Veterans Affairs, whereby defendant seeks dismissal with prejudice of all claims brought by plaintiff. For the following reasons, the motion is DENIED IN PART and GRANTED IN PART.
This matter involves claims brought under Title VII for unlawful discrimination on the basis of sex. More specifically, plaintiff Melanie Taylor asserts she was subjected to a hostile work environment based upon sex, and retaliation for her engagement in protected activity in the form of a poor rating on her annual performance review.
Plaintiff began working as a Licensed Practical Nurse ("LPN") with the United States Department of Veterans Affairs ("VA") in 1997. In June 2005, plaintiff accepted a position at the Lafayette Community Based Outreach Clinic ("LCBOC"), a subsidiary of the VA Medical Center in Alexandria, Louisiana. Mary Andrus is a coworker and fellow LPN of Taylor's who began working at the LCBOC in 2011. Plaintiff alleges "[b]etween June 2011 and May 2012, Andrus engaged in a pattern and practice of making hostile, threatening and offensive comments about Taylor, and other coworkers, at the LCBOC." [Doc. 1, p. 2]
More specifically, plaintiff alleges Andrus told their colleagues Andrus "was going to tie Taylor up, put her in the trunk, and throw her in the bayou." [Id. at 3] Plaintiff alleges Andrus told colleagues Taylor was a "junkie," Andrus told colleagues Taylor was dating another female coworker and they were "gay," and that Taylor was "sleeping with patients for money." [Id.] Andrus did not make the offensive comments when Taylor was present, but Taylor was informed of the comments by her coworkers. [Id. at 2-3]
In May of 2012, plaintiff advised her supervisor Geralyn Shelvin of the comments and requested a meeting to address the matter. [Id. at 3] On May 15, 2012, plaintiff's supervisor met with plaintiff, Andrus, and two other employees. According to plaintiff, after discussing the comments made by Andrus and how she was disturbed by them, Andrus responded "by crying throughout the meeting, and at one point stating she was sorry if she hurt anybody." [Id. at 3] At the conclusion of the meeting, plaintiff and Andrus agreed "to start a clean slate." [Doc. 32-3, p. 32] Plaintiff's supervisor did not take any further action in response to the information discussed at the meeting. [Id. at 3-4]
However, after the meeting Andrus contacted VA supervisory staff and claimed that plaintiff was bullying Andrus and creating a hostile work environment towards Andrus. [Doc. 1, p. 4] Specifically, Andrus claimed plaintiff had called a meeting and made false allegations toward plaintiff. In response to Andrus' claims, the supervisor instructed the Associate Chief of Nursing to conduct a fact-finding investigation regarding a possible hostile work environment created by plaintiff. [Id.] After scheduling fact-finding interviews, the investigator was contacted by a union representative who advised it was plaintiff who was being harassed, and not Andrus. [Id.] At that point, the investigation was cancelled, and Andrus' claim was never investigated by the VA. [Id.; see also Doc. 32-4, p. 20; doc. 32-1, p. 2]
On July 11, 2012, plaintiff filed a formal Equal Employment Opportunity ("EEO") complaint alleging, as relevant here, hostile work environment on the basis of sex, the failure of management to take appropriate action upon becoming aware of the harassment, and retaliation for prior protected EEO activity. [Doc. 1, p. 4] On September 26, 2012, the LCBOC Director temporarily reassigned Andrus to the Jennings, Louisiana facility and ordered an Administrative Investigative Board to investigate the hostile work environment claims made by plaintiff. [Id.] On November 5, 2012, the AIB found Andrus had made the alleged inappropriate comments about plaintiff. As a result, Andrus was permanently reassigned to the Jennings facility. [Id. at 5; Doc. 32-1, p. 3] On August 21, 2013, the VA Office of Employment Discrimination issued a Final Agency Decision, finding plaintiff "proved that she was subjected to a hostile work environment based on her sex for which the Agency is liable." [Doc. 1, p. 5 (quoting Doc. 32-4, p. 33)]
With regard to her claim of retaliation, plaintiff asserts on April 25, 2013, she filed a complaint against second-level supervisor Barbara Nugent for harassment, because "Nugent wrote [plaintiff] up for taking pre-approved disability leave." [Doc. 34-12, p. 2] On October 25, 2013, plaintiff received a performance evaluation of "Excellent" from her immediate supervisor. On November 1, 2013, plaintiff was informed by her supervisor that Nugent "had unilaterally—and without justification—lowered Taylor's performance evaluation from `Excellent' to `Fully Successful.'" [Id. at 2, 5] According to plaintiff, a rating of "exceptional" entitled her to a bonus, whereas a rating of "fully successful" did not. [Doc. 34, p. 20] In January 2014, the VA issued a Final Agency Decision concluding that plaintiff failed to prove Nugent had a retaliatory motive in connection with plaintiff's "Fully Successful" performance rating. [Doc. 32-4, p. 56]
"A party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought." Fed.R.Civ.P. 56(a). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id.
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Id. at § (c)(1).
As summarized by the Fifth Circuit:
Lindsey v. Sears Roebuck and Co., 16 F.3d 616, 618 (5
Finally, in evaluating evidence to determine whether a factual dispute exists, "credibility determinations are not part of the summary judgment analysis." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5
Title VII makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court has found same-sex harassment claims are actionable under Title VII. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). In analyzing same-sex hostile work environment claims, the first inquiry is whether the alleged harasser's conduct constitutes discrimination on the basis of sex; only if the answer is yes, does one move to the second inquiry of whether the conduct meets the standard for a hostile work environment claim. La Day v. Catalyst Tech, Inc., 302 F.3d 474, 478 (5
In a same-sex harassment case, discrimination on the basis of sex can be established by showing: (1) the alleged harasser made explicit or implicit proposals of sexual activity, coupled with credible evidence that the harasser was homosexual; (2) the harasser was motivated by general hostility to the presence of members of the same sex in the workplace; or (3) "direct, comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."
Defendant contends plaintiff cannot show any discrimination against her was based on sex. However, defendant devotes its entire argument to only the first illustrative scenario — i.e., that plaintiff cannot show Andrus made explicit or implicit proposals of sexual activity, nor can she provide credible evidence that Andrus was homosexual. [Doc. 32-2, pp. 10-11] With regard to the latter two illustrative scenarios, defendant merely summarily states, "Likewise, record [sic] is void of any proof that would establish the other two prongs of the same-sex discrimination/harassment analysis." [Id.]
Plaintiff contends she has presented evidence to establish the second scenario — i.e., that Andrus was motivated by general hostility to the presence of members of the same sex in the workplace. In support, plaintiff relies upon the finding of the VA in its Final Agency Decision that plaintiff alleges establishes she was subjected to unlawful discrimination on the basis of her sex. [Doc. 34, pp. 12-13] Specifically, the VA found: "it was [Andrus'] intention to degrade Complainant as a female by stating that Complainant was gay and was involved in a sexual relationship with another female rather than with a male," and that plaintiff was additionally subjected to Andrus' "comments to other LPNs that Complainant has sex with patients of the [VA] for money." [Doc. 32-4, p. 31]
Plaintiff has presented some evidence to support this prong — albeit, primarily by referencing the agency's conclusions and not the underlying facts. The conclusions are not determinative, however, the underlying facts supporting that conclusion can be seen as evidence.
The creation of a hostile work environment through harassment is a form of prohibited discrimination under Title VII. Boh Bros. Const. at 452. "`When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.'" Oncale at 78 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). To succeed on a claim of hostile work environment where the alleged harasser is a co-employee, a plaintiff must show: (1) she belongs to a protected class, (2) she was subject to unwelcome harassment, (3) the harassment was based on sex, (4) the harassment affected a term, condition, or privilege of employment, and (5) her employer knew or should have known of the harassment and failed to take proper remedial action. Shepherd v. Comptroller of Public Accounts of State of Texas, 168 F.3d 871, 873 (5
Defendant jointly addresses the second and third elements of plaintiff's prima facie claim as follows:
[Doc. 32-2, p. 12] No further argument is made regarding these two elements.
With regard to the second element (unwelcome sexual harassment), plaintiff responds by, again, merely citing to the VA's conclusion that plaintiff "was subjected to unwelcome verbal conduct of a sexual nature when Ms. [Andrus] made comments about Complainant's sexual orientation and an alleged homosexual relationship with a female coworker."
It is not lost on this Court that prior administrative findings are not determinative, as this Court's review is de novo. Neither is it lost on this Court that administrative findings are based on facts reflecting conduct, and may be admitted as evidence at the "federal-sector trial de novo." Chandler at n. 39. Thus, for purposes of this motion this Court must find plaintiff has put forth evidence, and yet, defendant has chosen not to address that evidence or plaintiff's argument, other than to dismiss same in an unsupported conclusory fashion. As defendant has made no attempt to show "that the materials cited do not establish the . . . presence of a genuine dispute," Fed. R. Civ. P. 56 (c)(1), again, movant has failed to carry its burden, and the analysis must proceed.
"To affect a term, condition, or privilege of employment, the harassment `must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.'" Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 479 (5
Defendant contends plaintiff cannot satisfy this element of her claim, arguing:
[Doc. 32-2, p. 12 (citations omitted)] This constitutes the entirety of defendant's argument on this element of the hostile work environment claim.
Plaintiff, again, responds by relying upon the VA's findings:
[Doc. 32-4, p. 31] However plaintiff, additionally, notes the jurisprudential concept of "tangible employment action," suggested by movant's argument, is only relevant where the harasser is a supervisor.
The Court agrees; it is irrelevant to the legal analysis now before the Court that no tangible employment action was taken against plaintiff, as such a concept comes into play only where the alleged harasser is the complainant's supervisor. Boh Bros. Const., 731 F.3d at 452; Jones v. Flagship Intern., 793 F.2d 714, 720 (5
In conclusion, it should be noted this Court could make no determination on the merits of plaintiff's claim of hostile work environment due to movant's failure to carry its burden, and not necessarily due to the strength of plaintiff's claim on the merits.
However, plaintiff's briefing, also, was deficient — yet, plaintiff was not the movant. Plaintiff essentially based its entire opposition on the conclusory findings of the VA in its Final Agency Decision. This is not a suit under the Administrative Procedures Act where the standard of judicial review of the decision of the administrative agency is one of great deference, rather, this matter requires de novo review by this Court and thus, the conclusory findings of the agency are not, in and of themselves, determinative. While the VA's review and findings might be admissible as evidence at trial, again, they are not determinative, as judicial review of a federal employee's discrimination claim is de novo. Chandler, 425 U.S. at 862, 863, n. 39. Thus, the Court would caution plaintiff as well, and note relying exclusively on the VA's conclusory findings might have been sufficient in this procedural posture and in light of movant's very limited argument and support, yet the same result might not flow under a different scenario. Nevertheless, defendant's motion seeking dismissal of plaintiff's hostile work environment claim is DENIED for failure to carry its burden to establish it is due the relief requested.
Title VII makes it "an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). "To establish a prima facie case of retaliation, a plaintiff must show that (1) she participated in a Title VII protected activity, (2) she suffered an adverse employment action by her employer, and (3) there is a causal connection between the protected activity and the adverse action." Stewart v. Mississippi Transp. Com'n, 586 F.3d 321, 331 (5
Plaintiff contends defendant retaliated against her "by lowering her 2013 performance rating from `Excellent' to `Fully Successful' after [she] had engaged in protected activity." [Doc. 1, pp. 6-7] According to plaintiff, this action was "materially adverse," because a rating of "exceptional" entitled her to a bonus, whereas a rating of "fully successful" did not. [Doc. 34, p. 20] Nevertheless, plaintiff concedes she did ultimately receive two bonuses, totaling approximately $1800.
"The antiretaliation provision protect an individual not from all retaliation, but from retaliation that produces an injury or harm." Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). In order to establish an adverse employment action, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68 (internal quotation marks omitted). The materiality requirement is "to separate significant from trivial harms." Id.; see also Davis v. Fort Bend County, 765 F.3d 480, 490 (5
The Fifth Circuit has noted, "Although it is clearly established that the denial of a promotion is an actionable adverse employment action, it is less clear whether a negative evaluation . . . or the denial of a bonus constitute actionable adverse employment actions."
In light of the reasons set forth above, defendant's motion for summary judgment [Doc. 32] is DENIED IN PART and GRANTED IN PART. The motion is DENIED to the extent it seeks dismissal of plaintiff's claim for hostile work environment; the motion is GRANTED to the extent it seeks dismissal of plaintiff's claim for retaliation.